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2005 Supreme(AP) 1131
Andhra Pradesh High Court
Judges : T.CH.SURYA RAO
MUKESH TELI - Appellant
Versus
BHARATI TELI - Respondent
Decided On : 12/09/2005
Civ. Revn. Petn. 3618 Of 2005
Manjari, S.BALCHAND, S.Ganguly
Headnote:
Criminal Procedure Code, 1973 – Section 488 – Hindu Adoption and Maintenance Act, 1956 – Sections 20, 21, 23 – Family Court – Interlocutory Application – Revision – Petitioner is the respondent in the interlocutory application filed in respondents herein seeking interim maintenance at the rate of Rs. 53,200/- per month pending disposal filed by the respondents seeking maintenance on the file of the Family Court wife and respondents 2 and 3 are their daughter and son respectively marriage of the petitioner with the first respondent was solemnized out of the lawful wedlock born to them on the premise that the respondents were neglected by the revision petitioner and harassment was meted out to them at his hands they filed the main petition seeking maintenance at the rate of Rs. 53,200/- per month breakup of which had been given inter alia in the petition which includes the expenses for maintaining house and for other day-today expenses like food, clothing, etc in an amount of Rs. 25,000/-, medical expenses at Rs. 4,200/-, education expenses for each at Rs. 10,000/-and hostel and miscellaneous expenses for petitioner No. 3 at Rs. 4,000/-, aggregating to Rs. 53,200/ -. Accompanying the petition they filed interim application, as aforesaid, seeking interim maintenance at the same rate application was resisted by the revision petitioner case of the respondent appears to be that the first respondent has also been earning equally –Held, Whether there is anything in Section 488 which is inconsistent with Section 23 or any other provisions of the Act? matter is no longer res Court held that there is no inconsistency between act 78 of 1956 and Section 488, Criminal P. C. Both could stand together Act of 1956 is an Act to amend and codify the law relating to adoption and maintenance among hindus law was substantially similar before when it was never suggested that there was any inconsistency with Section 488 Criminal P. C. scope of the two laws is different. Section 488 provides a summary remedy and is applicable to all persons belonging to all religions and has no relationship with the personal law of the parties it is obvious from the impugned order the Court below failed to consider these aspects and reached a conclusion not with reference to any intelligible data or the considerations enjoined under the provisions of section 23 of the Act, but on sheer hypothesis not tenable and cannot be sustained matter has to be invariably sent back to the court for fresh consideration suitable arrangement shall have to be made for the period interregnum till the application on such a remand is disposed of by the Court. Obviously, the second respondent is a major daughter under Section 20 of the Act a Hindu is bound during his or her lifetime to maintain his or her legitimate or illegitimate children so long as the child is a minor obligation extends to a daughter, who is unmarried only when she is unable to maintain herself out of her own earnings or other property unmarried daughter is no doubt a dependent as can be seen from Section 21 of the act. She can claim maintenance as a dependent in the event of the death of the deceased against the estate – Revision petition is allowed.
( 2 ) THE revision petitioner is the respondent in the interlocutory application filed in la. No. 1486 of 2004 by the respondents herein seeking interim maintenance at the rate of Rs. 53,200/- per month pending disposal pf O. P. No. 902 of 2004, filed by the respondents seeking maintenance, on the file of the Family Court, Hyderabad. The first respondent is the wife and respondents 2 and 3 are their daughter and son respectively. The marriage of the petitioner with the first respondent was solemnized on 31-12-1983. Out of the lawful wedlock, respondents 2 and 3 were born to them. On the premise that the respondents were neglected by the revision petitioner and harassment was meted out to them at his hands, they filed the main petition seeking maintenance at the rate of Rs. 53,200/- per month, the break up of which had been given inter alia in the petition which includes the expenses for maintaining house and for other day-today expenses like food, clothing, etc. in an amount of Rs. 25,000/-, medical expenses at Rs. 4,200/-, education expenses for each of the respondents 2 and 3 at Rs. 10,000/-and hostel and miscellaneous expenses for petitioner No. 3 at Rs. 4,000/-, aggregating to Rs. 53,200/ -. Accompanying the petition, they filed interim application, as aforesaid, seeking interim maintenance at the same rate. That application was resisted by the revision petitioner. The case of the respondent appears to be that the first respondent has also been earning equally. He was driven out of the flat by his wife and got him arrested by the Police by launching a false case, on account of which, his business has gone down and suffered losses. If the respondents 2 and 3 are willing,they can stay with the father, and since his wife is also equally earning she must share the burden.
( 3 ) AT the time of the enquiry, Exs. P1 to p 65, on the side of the petitioners/claimants and Exs. R1 to R16, on the side of the revision petitioner were got marked. After having heard either side and considering the documents filed on either side, under the impugned order, the Court below directed the revision petitioner to pay an amount of rs. 15,000/- per month as interim maintenance to the respondents 1 to 3 from the date of petition. Having been aggrieved by the said order, the revision petitioner is now assailing the same, as aforelsaid.
( 4 ) THE learned counsel for the petitioner represents that the first respondent has been getting an income of approximately Rs. 20,000/- per month and has been residing in the residential flat accommodation of the revision petitioner. Granting interim maintenance at huge rate of Rs. 15,000/- is unwarranted and the Court shall have to see at the time of granting interim maintenance, the bear necessities of the parties. It is his contention that the rate of interim maintenance granted by the Court below has no relevance to the actual income of the revision petitioner. Finally, it is contended that there has been no provision granting interim maintenance and the application filed under Section 151 of the C. P. C. is not maintainable.
( 5 ) THERE has been no gainsaying about the relationship inter se between the parties. As can be seen from the impugned order, the age of the second respondent-daughter was 19 years at the time of filing of the application and the age of the third respondent-son was 17 years by then. The second respondent obviously an unmarried major daughter. The main O. P. No. 902 of 2004 was filed before the Family Court seeking maintenance. Although no provision has been mentioned therein, since the parties are Hindus, the application must have been
